As a corollary to mass tort lawsuits arising out of a product or ingredient’s alleged toxicity, we frequently see claims concerning the substance or product at issue under various consumer protection statutes and causes of action. These sorts of claims do not involve showing exposure and causation, which both lessens the burden of establishing the science as would be the case in the toxic tort counterpart and generally makes them more susceptible to class action treatment due to the lack of individualized issues of causation and exposure.
Rather, the premise is simply that some undisclosed, potentially hazardous substance is in the product, contrary to the product’s description and marketing, thereby misleading the otherwise uninjured consumer. A prior example was the presence of glyphosate in breakfast cereal, which was argued to have rendered misleading the advertising of the product as “natural.”
In a more recent example, with the growing focus on per- and polyfluoralkyl substances (PFAS) and in contrast with the heretofore more prominent PFAS claims relating to fire-fighting foam and groundwater contamination, consumer lawsuits have been filed against cosmetics manufacturers based on their alleged presence in those products. Generally, as PFAS have water resistant properties and film-forming capabilities, these man-made compounds would be used in cosmetics to enhance the product’s durability, spreadability and overall wear.
Akin to the allegations that the presence of glyphosate contradicted the description of the cereal product as “natural,” recent cosmetic lawsuits find contradictions between the presence of PFAS with the branding of a cosmetics line as “bareMineral,” and advertising and marketing that another company’s cosmetics are “sustainable.” In Onaka v. Shiseido Americas Corp., 21-cv-10665 (S.D.N.Y. filed Dec. 14, 2021), the class plaintiffs assert that the “bareMineral” manufacturer “intentionally joins the words ‘bare’ and ‘minerals’ as its brand name to convince consumers that its products are clean and natural,” yet:
The Merriam-Webster definition of “bare” is “having nothing left over or added” and connotes something that is basic or simple—without addition. The Merriam-Webster definition of “mineral” means “a naturally occurring homogonous substance,” and minerals are commonly known as substances essential for health and meeting basic nutritional requirements. Reasonable consumers, therefore, fairly and reasonably understand that a product named bareMinerals, which is marketed as clean and natural, would not contain human-made chemicals like PFAS.
In GMO Free USA v. Cover Girl Cosmetics, No. 2021 CA 004786 B (D.C. Super Ct. filed Dec. 29, 2021), the plaintiff NGO similarly alleges that the presence of PFAS, as a class of “forever chemicals,” contradicts the cosmetic maker’s claims of “open, inclusive and sustainable beauty.”
These will be interesting cases to follow, and we might wonder what other consumer products might become such tagalongs to the PFAS toxic tort litigation. How the term “sustainable” will be treated is another matter to watch as a precedent for other products.